Background
He Li, a self-represented registered nurse, sought judicial review in the Federal Court of Australia of a decision made by the Nursing and Midwifery Board of Australia (the Board) in October 2025 requiring her to undergo a performance assessment. She also challenged related communications from the Australian Health Practitioner Regulation Agency (AHPRA). Ms Li filed her originating application in December 2025, grounding the Court’s jurisdiction in s 39B(1) of the Judiciary Act 1903 (Cth), which confers jurisdiction over matters in which mandamus, prohibition, or an injunction is sought against “an officer or officers of the Commonwealth.” An urgent stay application filed in January 2026 was refused by Horan J, who flagged serious doubts about jurisdiction while noting it was at least arguable; the Board and AHPRA voluntarily postponed the performance assessment pending the jurisdictional challenge.
Both the Board and AHPRA are established under the Health Practitioner Regulation National Law as applied by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) — a State statute, not a Commonwealth Act. The Board is a body corporate representing the State; its members are appointed, remunerated, and removed by the Ministerial Council (comprising State, Territory, and Commonwealth Health Ministers). AHPRA is likewise a body corporate established under Part 4 of the National Law, with its Agency Board members similarly appointed and removable by that Ministerial Council. In May 2026 the Respondents moved for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on the ground that the proceeding had no reasonable prospect of success because the Court lacked jurisdiction.
Hill J determined the summary judgment application on the papers, noting the legal arguments could be resolved without an oral hearing. The Court was also asked to rule on Ms Li’s application for a pseudonym order and suppression orders under ss 37AF–37AG of the Federal Court Act.
The Court’s Holding
Hill J granted summary judgment in favour of the Respondents. The Court held that neither the Board nor AHPRA — nor any of their individual officers — is an “officer of the Commonwealth” within s 39B(1) of the Judiciary Act. Two independent reasons supported this conclusion. First, both the Board and AHPRA are bodies corporate, and settled Federal Court authority establishes that a body corporate cannot be an “officer” for s 39B(1) purposes. Second, and more fundamentally, both bodies and all of their officers are creatures of State law: they are established, appointed, remunerated, and removed under the National Law as applied by State and Territory legislation. The Commonwealth’s sole involvement is the Commonwealth Health Minister’s participation as one member of the multi-jurisdictional Ministerial Council — insufficient to render any officer an officer of the Commonwealth.
The Court rejected the argument that the national character or branding of these bodies (their “Australia”-titled names and cross-border operation) altered the analysis. The national scheme is achieved through co-operative, near-identical State and Territory enactments, not through any transfer of constitutional authority to the Commonwealth. The National Law is not a Commonwealth law; no Commonwealth Act confers powers on the Board or AHPRA. Consequently, jurisdiction could not be founded on s 39B(1A)(c) of the Judiciary Act (matters arising under Commonwealth laws) either, because the relevant powers derive entirely from State law. Review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was equally unavailable, as decisions made under the National Law are not made under a Commonwealth “enactment” within the meaning of that Act, and the National Law is not listed in Schedule 3 of the ADJR Act.
With no arguable jurisdictional basis, the Court held the proceeding had no reasonable prospect of success and entered summary judgment for the Respondents. Ms Li was ordered to pay the Respondents’ costs fixed at $14,000. Her application for a pseudonym order was refused on the basis she had not established necessity, though an order was made restricting public inspection of one exhibit disclosing her child’s medical information.
Key Takeaways
- AHPRA and the National Boards (including the Nursing and Midwifery Board of Australia) are established under co-operative State and Territory legislation, not Commonwealth law; their officers are therefore not “officers of the Commonwealth” amenable to Federal Court judicial review jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth).
- A body corporate cannot itself be an “officer of the Commonwealth,” and the national branding or cross-border operation of a body does not transform State-created entities into Commonwealth ones.
- Neither s 39B(1A)(c) of the Judiciary Act (Commonwealth law matters) nor the ADJR Act provides an alternative jurisdictional hook for challenging National Law decisions, because the National Law is State law and is not listed in Schedule 3 of the ADJR Act.
- Where a court plainly lacks jurisdiction, summary judgment under s 31A of the Federal Court of Australia Act 1976 is the appropriate remedy; lack of jurisdiction means there is no reasonable prospect of success regardless of the merits of the underlying challenge.
- Self-represented litigants are owed procedural fairness and explanation, but this does not extend to conferring a substantive advantage or waiving jurisdictional requirements.
Why It Matters
This decision reinforces a consistent line of Federal Court authority — running from Broadbent v Medical Board of Queensland (2011) through Pardo v Australian Health Practitioner Regulation Authority (2013) — holding that health practitioner regulators operating under the co-operative National Law scheme cannot be judicially reviewed in the Federal Court under the standard constitutional-writs jurisdiction. For practitioners and regulated health professionals, it clarifies that the Federal Court is simply not the right forum to challenge AHPRA or National Board decisions: applicants must instead look to the administrative review mechanisms within the National Law scheme or to State and Territory Supreme Courts.
The case also illustrates the limits of “national” co-operative legislative schemes in constitutional terms. Despite operating seamlessly across Australia under a unified title, entities established solely by State enactments remain State actors. Health professionals who believe AHPRA or a National Board has acted unlawfully cannot cure this jurisdictional gap simply by framing their challenge as one against a “national” or “Australian” body — the constitutional character of the enabling legislation is determinative, not the scope of the body’s practical reach.